COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 060082

 

Amending Chapter 80, Code of Ordinances, by repealing Section 80-230, Legal nonconformance, and enacting in lieu thereof one new section of like number and subject matter to allow certain adult cabarets to expand within an existing building.

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section A. That Chapter 80, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by repealing Section 80-230, Legal nonconformance, and by enacting in lieu thereof one new section of like number and subject matter, to read as follows:

 

Sec. 80-230. Legal nonconformance.

 

By virtue of the passage of Ordinance No. 45608, passed June 4, 1923, which created various district classifications and divided the city into such districts, certain nonconformities were created. Additional nonconformities have been created by amendments to the zoning ordinance. Therefore, the following procedures are hereby established to determine those uses which were lawful prior to the passage of the zoning ordinance, or any amendment thereto, and to provide for the conversion of legal nonconformities to comply with current provisions:

 

(1) Definitions.

 

a. Effective date of this chapter. For purposes of this section only, the effective date of this chapter shall be presumed to be June 4, 1923, or the date of annexation of the subject property, whichever is later.

 

b. Legal nonconformance means any legal nonconforming use, legal nonconforming use in a conforming structure or building, conforming use in a legal nonconforming structure, legal nonconforming structure or building or legal nonconforming sign.

 

c. Legal nonconforming use means a structure, building or use of land that is in existence and lawful on the date when a zoning ordinance or any amendment thereto becomes effective prohibiting such use, but which, nevertheless, continues unaffected by such an ordinance or amendment thereto.

 

d. Legal nonconforming use in a conforming structure or building means a use or activity which is legal when commenced but made nonconforming by a subsequently enacted zoning ordinance, while the building in which the use or activity takes place, or the structure utilized, conforms to the ordinance. The most obvious example of such a use would be a small-scale commercial activity or use (e.g., operation of a restaurant in a building designed for single-family residential use and located in a residential district).

 

e. Conforming use in a legal nonconforming structure means a use or activity complying with the zoning ordinance or any amendment thereto, but which is conducted in a building or utilizes a structure that, because of some design characteristic, fails to conform to an ordinance passed after the building or structure has been constructed.

 

f. Legal nonconforming structure or building means a lawfully existing structure which becomes nonconforming because of an ordinance enacted subsequent to its erection. The nonconformance may be attributed to size, nature of construction, location of the structure or building on the land, or its proximity to another structure or building.

 

g. Legal nonconforming sign means a physical method of identifying a name, symbol or token, including the sign structure (including framework and supports), which was lawful when constructed but has become nonconforming as a result of any amendment to this chapter.

 

h. Certificate of legal nonconformance means a determination that a legal nonconformance has been established. A certificate of occupancy for a legal nonconforming use, as previously required, shall be deemed to be a certificate of legal nonconformance.

 

i. Zoning change means a change in zoning classification on the zoning map, occurring as a result of rezoning property. A nonconformance resulting from a zoning change shall be distinguished from a nonconformance resulting from an amendment to the text of the zoning ordinance.

 

(2) Continuance of legal nonconformities.

 

a. Nonconforming uses authorized. A legal nonconforming use existing prior to the passage of this chapter or amendment thereto may be continued, except as otherwise provided in this section.

 

b. Amortization of legal nonconforming uses of land. Legal nonconforming use of land shall be discontinued within one year from the effective date of this chapter or amendment thereto which makes the use of land nonconforming unless, in either case, such land is wholly or partially occupied with a permanent, enclosed building, the design or use of which is nonconforming.

 

c. Legal nonconforming structures or buildings. The lawful use of a structure or building, prior to the effective date of this chapter or amendment thereto, which is nonconforming as to design, shall be permitted to continue for the usable life of the structure or building as provided in this section.

 

d. Nonconforming distance from a residential district. When a building in a zoning district is occupied by or designed for a use which is classified in that district, but does not conform to the distance requirements from a residential district, then any subsequent change in use shall be to a use that conforms to the distance requirements specified for the district.

 

e. Legal nonconforming signs. All legal nonconforming signs shall be permitted to continue during the usable life thereof.

 

f. Construction of nonconforming use provisions regarding adult businesses. The following provisions shall apply to the application of the nonconforming use provisions of this Section 80-230 to adult businesses:

 

i. Each of the following shall be considered a unique and separate adult business: adult cabaret, adult media store (which will be considered a single use even if it also includes adult books and other printed matter); massage shop, modeling studio, bathhouse, adult motion picture theater and/or sex shop.

 

ii. An adult media store is a less intensive use than a sex shop. Any nonconforming use as a sex shop may be converted to a nonconforming use as an adult media store at any time with written notice provided to the director of city development without any further approvals or actions required by the City. If a nonconforming use as a sex shop is converted to a nonconforming use as an adult media store, it may not thereafter be converted.

 

iii. Except as provided in subparagraph ii of this subsection (2)f, where a certificate of legal nonconformance establishes a right to operate one or more adult businesses at a particular location, only the business or businesses specifically identified in the certificate of legal nonconformance shall be allowed and no other adult business shall be allowed as a nonconforming use at that particular location. The provisions of subsection (4) of this Section 80-230 shall not apply to adult businesses established as nonconforming uses and the director of city development has no authority to authorize a change to a certificate of legal nonconformance for an adult business except as provided in this subsection (2) of this Section 80-230.

 

iv. Certificates of legal nonconformance issued for an adult business shall apply to all aspects of the nonconformance of the adult business with the Zoning Ordinance, including the separation requirements established specifically for adult businesses in this Zoning Ordinance.

 

v. Notwithstanding other provisions of Section 80-230, an adult business which includes one or more motion picture arcade booths for which there is a certificate of legal nonconformance shall be allowed to relocate the motion picture arcade booths incident to a relocation of the business, subject to the following terms and locations: (1) the motion picture arcade booths may be relocated only if the relocation involves all adult businesses or all aspects of the adult businesses on the premises which do not conform to the Zoning Ordinance in that location; (2) not more than the number of motion picture arcade booths shown on the certificate of legal nonconformance or proven by the applicant to be subject to the certificate of legal nonconformance may be relocated; (3) not more than the number of motion picture arcade booths actually in operation on the date of application for relocation may be relocated; (4) the motion picture arcade booths may be relocated only in conjunction with the relocation of all adult businesses or all aspects of the adult businesses on the premises which do not conform to the Zoning Ordinance; (5) the location to which the motion picture arcade booths are relocated must conform in all respects to the Zoning Ordinance as to all other aspects of the adult business, including separation and other requirements specifically applicable to the adult business which is relocating; (6) the relocated motion picture arcade booths shall conform fully with the requirements of Section 12-67 of the Code of Ordinances, including the design requirements; (7) after such relocation, the motion picture arcade booths shall be the subject of a certificate of legal nonconformance as though they had always been at the new location, except that the certificate of legal nonconformance shall, on its face, reflect the fact of the relocation and the actual history of the booths involved. Any relocation of an adult business, including motion picture arcade booths, shall be approved by the director of city development upon receipt of a written request and such other information that the director may request provided that the standards applied to the determination of approval or denial shall be the conditions set forth in this subparagraph (v). Upon approval of the relocation of the adult business with the motion picture arcade booths, the certificate of legal nonconformance at the previous location shall be void.

 

(vi)              No building arranged or designed for or devoted to a legal nonconforming use may be extended or enlarged or structurally altered; provided however that alterations to the roofs of structures, including roof pitches, may be approved by the director of city development if the alteration does not increase the floor area or usable space of the structure and that establishments with media rooms, preview rooms or other spaces created as exempt from Second Committee Substitute for Ordinance No. 970827, As Amended, hereinafter referred to as Ordinance 970827" as codified at section 12-275 through section 12-283, because they were nominally designed to seat ten (10) or more people, shall have until May 1, 1999, to remove the doors from those rooms and to take other actions to bring those spaces into compliance with section 12-67(a)(1), (2) and (3). As an alternative, the establishment may replace those rooms with no more than the number of motion picture arcade booths existing in the same space prior to the passage of Ordinance No. 970827, on July 3, 1997, provided that each and every replacement motion picture arcade booth shall fully conform to the requirements of this section, and particularly with section 12-67(a)(1), (2) and (3); any booths created by conversion under this section shall be treated as legal nonconforming uses, as though they had existed continuously from the date of passage of Ordinance No. 970827 until passage of Second Committee Substitute for Ordinance No. 981270. The provisions of subsections (3)(b) and (c) of this Section 80-230 shall specifically not apply to adult businesses established as nonconforming uses. However, normal repairs and alterations may be made to a legal nonconforming building provided that no structural alterations are made except as otherwise permitted in this subsection (2)(f)(vi).

 

(vii) Notwithstanding any other provisions of Section 80-230, an adult cabaret operating under a certificate of legal nonconformance and providing entertainment that does not comply with the provisions of Chapter 10 of this code may convert to an adult cabaret providing entertainment that does comply with Chapter 10. At the time of such conversion, upon application which includes a site plan complying with Section 80-156(d), the Director of City Development may issue a new certificate that allows the expansion of the adult cabaret providing entertainment complying with the provision of Chapter 10, to include additional floor area within the confines of the structure of the existing building in which the adult cabaret is located, provided that the off-street parking requirements of Section 80-444 are met, and provided that the converted adult cabaret becomes a less intensive use. Notwithstanding the provisions of Section 80-444, where such off-street parking facilities are permitted on land other than the lot to be served, such parking facilities shall be in the same ownership as the lot to be served unless otherwise permitted under terms approved by the Director of City Development. The Director may approve a site plan without the parking required in Section 80-444 where the parking provided is consistent with solid planning principles in consideration of anticipated use, mass transit accessibility and off-site parking availability. The parking provided on the site plan shall remain available and shall be the basis of a violation if not provided. Any adult cabaret that converts as above may not thereafter convert back to providing entertainment that does not comply with Chapter 10. The converted adult cabaret shall comply with the following regarding signage and displays:

 

1. The facility in which such use is located shall be limited to one wall-mounted sign not to exceed a total of 50 square feet.

 

2. The sign shall not flash, blink or move by mechanical means and shall not extend above the roof line of the building.

 

3. No merchandise or pictures of products or entertainment on the premises shall be displayed in window areas or any area where such merchandise or pictures can be viewed from the sidewalk in front of the building.

4. No flashing lights or lighting which leaves the impression of motion or movement shall be permitted.

 

(3) Extension, expansion or repair of legal nonconforming uses.

 

a. The extension of legal nonconforming use to any portion of a building, which portion constructed expressly for such nonconforming use prior to the effective date of this chapter or amendment thereto, shall be permitted, provided no structural alterations are made.

 

b. No building arranged or designed for or devoted to a legal nonconforming use may be extended or enlarged or structurally altered unless the use of such building is changed to a conforming use or unless a special permit shall be granted by the board of zoning adjustment in the case of evident hardship; provided however, that alterations to the roofs of structures, including roof pitches, may be approved by the director of city development if the alteration does not increase the floor area or usable space of the structure. The special permit shall not authorize an extension in excess of 25 percent of the ground area of the original building; and, further, an extension of the original building shall in no case authorize the construction of a new and separate structure.

 

c. No legal nonconforming use of the land may be extended to cover additional land area unless the use of the land is changed to a conforming use or unless a special permit shall be granted by the board of zoning adjustment in the case of evident hardship. The special permit shall not authorize an extension in excess of ten percent of the land covered by the original nonconforming use or authorize the construction of any structure or building.

 

d. No legal nonconforming sign shall be extended, enlarged or structurally altered except as provided in subsection (7)b of this section; provided that, notwithstanding anything in this chapter to the contrary, nonstructural alterations or modifications designed to improve the appearance of a legal nonconforming outdoor advertising sign without increasing its usable life may be made upon the prior approval of the director of city development 

 

e. Normal repairs and alterations may be made to a legal nonconforming building, provided that no structural alterations shall be made, except those required by law or ordinance.

 

(4) Restrictions on changing legal nonconforming uses.

 

a. No legal nonconformance shall be changed to another use unless the director of city development determines that the use is an equal or higher (more restricted) use and that all other applicable regulations, including but not limited to parking, setbacks and density, are met, and authorizes the requested change based upon such determination.

 

b. If a nonconforming use is changed to a higher (more restricted) nonconforming use, it may not thereafter be changed unless to an equal or to a still higher nonconforming use or to a conforming use.

 

c. For the purpose of this chapter, a nonconforming use shall be deemed to be changed to an equal or a higher (more restricted) use when the use to which such nonconforming use is changed is a use included in the same district classification or in a district classification preceding the district in question in the arrangement of districts in this chapter.

 

d. A nonconforming use, if changed to a conforming use, may not thereafter be changed back to a nonconforming use.

 

(5) Discontinuance of legal nonconformance.

 

a. A legal nonconformance shall not be resumed if discontinued. Discontinuance shall be defined as follows:

 

1. When unimproved land used in a nonconforming manner shall cease to be used as such for 90 consecutive days.

 

2. When a structure or building shall cease to be used in a nonconforming manner for a period of 12 consecutive calendar months.

 

3. When a legal nonconforming sign ceases to display a message, name, symbol or token for a period of 90 days.

 

4. When a legal nonconforming on-premises sign ceases to identify an activity on the same site for a period of 90 days.

 

5. When a legal nonconforming sign is changed, modified or otherwise altered in any manner without prior approval of the director of city development pursuant to subsection (4)a of this section or prior approval of the board of zoning adjustment pursuant to subsection (7)b of this section, provided that the message on a legal nonconforming outdoor advertising sign, including any changeable copy panels or any copy cutouts, copy extensions or other sign embellishments, may be changed without seeking approval by the board.

 

Upon evidence of hardship, the board of zoning adjustment shall have the authority to extend the time limits set out in this subsection for a period not to exceed three months; provided that the application for extension is filed prior to the expiration dates set out in this subsection.

 

b. An existing structure, building, use or sign which becomes nonconforming as to bulk or use by virtue of any amendment to this chapter, and which does not comply with the requirements of subsection (6)d. of this section, shall be deemed discontinued.

 

c. Notice of discontinuance of certificates of legal nonconformance shall be as follows:

 

1. Upon receipt of evidence that a legal nonconformance which has a certificate of legal nonconformance has been discontinued, the director of city development shall promptly notify the owner that an order will be issued revoking the certificate of legal nonconformance, absent proof that such nonconformance has not been so discontinued.

 

2. The owner of the legal nonconformance shall be given a period of 30 days from the date of receipt of notice from the director of city development to submit evidence that the legal nonconformance has not been discontinued.

 

3. At the expiration of 30 days or as soon thereafter as possible, the director of city development shall issue his order revoking or refusing to revoke the certificate of legal nonconformance. The decision of the director of city development shall be final unless appealed to the board of zoning adjustment within fifteen days of the order of the director of city development.

 

(6) Establishment of legal nonconformance.

 

a. Upon timely request by a property owner, a certificate of legal nonconformance shall be issued by the director of city development for all nonconformities lawfully established under the provisions of this chapter.

 

b. Any existing nonconformance established as such, prior to and existing continuously from the effective date of this chapter, shall be presumed to be a legal nonconforming use.

 

c. The owner of any existing structure, building, use or sign made nonconforming as to bulk or use by any text amendment to this chapter or zoning change after the effective date of this chapter but before March 31, 1975, may apply to the director of city development for a certificate of legal nonconformance pursuant to subsection (6)g of this section.

 

d. The owner of any existing structure, building, use or sign made nonconforming as to bulk or use by any text amendment to this chapter after March 31, 1975, and before January 23, 2006, or any zoning change after March 31, 1975, shall have a period of one year from the date the structure, building, use or sign is made nonconforming to obtain a certificate of legal nonconformance from the director of city development as provided in subsection (6)g of this section or it shall be deemed discontinued.

 

e. Within 30 days after the effective date of any zoning change occurring after March 31, 1975, which shall render any existing structure, building, use or sign nonconforming as to bulk or use, the director of the city development department shall cause to be published a public notice in a daily paper, twice, on two successive weeks, notifying all property owners affected by such zoning change, of the provisions of this section and the requirement that an application for a certificate of legal nonconformance must be filed within the one-year period set forth in this section. The director of the city development department shall also send by certified mail, return receipt requested, a copy of such public notice, to the property owners of every structure, building, use or sign actually known by the director to be affected by the zoning change, resulting in nonconformity as to use or bulk, and shall post a copy of the public notice at a conspicuous place on the structure, building or land or shall deliver a copy of the notice to a person found at the property.

 

f. Each property owner or person affected shall make application for the certificate of legal nonconformance upon such forms as the director of city development shall provide. A certificate of legal nonconformance shall then be issued by the director of city development to the applicant if the nonconformity was established and exists as provided for in this section.

 

g. Upon timely request by the owner, a certificate of legal nonconformance shall be issued by the director of city development upon satisfactory proof being submitted by the applicant that the nonconformity as to bulk or use was legally established prior to the effective date of this chapter or any amendment thereto which created the nonconformity as to bulk or use and that such use has not been discontinued. Satisfactory proof shall also be submitted to establish that such nonconformity has not previously been adversely ruled upon by the director of city development, the board of zoning adjustment or a court of competent jurisdiction. The director of city development or his designee shall receive all competent evidence submitted, shall have inspected the structure, building, use or sign which is the subject of the application, and shall render his decision in writing either granting or denying the certificate.

 

h. An appeal from the decision of the director of city development may be taken by the applicant or any aggrieved party in accordance with the provisions of section 80-310.

 

i. If no appeal is taken within fifteen days from the date the decision of the director of city development is issued, the decision shall become final and any certificate of legal nonconformance issued or not issued shall establish the legality of the nonconforming structure, building, use or sign.

 

j. Any structure, building, use or sign made nonconforming by any amendment to this chapter or after the effective date of this chapter for which the owner fails to obtain the required certificate of legal nonconformance as provided in this section shall be an illegal nonconforming structure, building, use or sign and as such shall be in violation of this section and shall be prohibited.

 

k. The board of zoning adjustment is hereby authorized to adopt rules and regulations to establish a procedure for administration of this section by the director of city development, and specifically to establish the procedure of determination of satisfactory proof as required by subsection (6)g of this section.

 

(7) Restoration of destroyed legal nonconformance.

 

a. Nothing in this chapter shall prevent, within a period of six months from the date of the destruction, the securing of a permit for the restoration of a legal nonconformance not more than 50 percent, as measured by the fair market value of the structure or building, destroyed by fire, explosion, act of God or act of the public enemy.

 

b. If a legal nonconforming outdoor advertising sign structure is lawfully or unlawfully destroyed, dismantled, removed or damaged by a property owner's lessee or his representative, or a trespasser, nothing in this chapter shall prevent such owner from applying to the board of zoning adjustment for a special permit for the restoration of such legal nonconforming sign within six months of the date of the nonconforming sign's destruction or removal. The board shall issue such permit upon a showing by the owner that:

 

1. A legal nonconforming outdoor advertising sign existed on property owned by the applicant within the six-month period immediately preceding the date of his application to the board.

 

2. The sign structure was destroyed, dismantled, removed or damaged by a lessee or his representative or a trespasser without the consent of the property owner.

 

3. The new sign structure does not permit an enlargement in the square footage of the sign face, an enlargement of the number of sign faces, or an increase in illumination.

 

The board shall issue a permit to the applicant allowing restoration of the legal nonconforming outdoor advertising sign upon such a showing and upon evidence submitted by the applicant that an unnecessary hardship or practical difficulty would result if the special permit were denied.

 

c. The determination of whether a structure or building is 50 percent, as measured by the fair market value, destroyed shall rest with the director of city development.

 

d. No permit for restoration shall be issued by the director of city development unless a certificate of legal nonconformance is presented with the request for a permit.

 

(8) Interpretation. Nothing in this section shall be interpreted as authorization for or approval of the continuance of the use of a building or premises in violation of zoning regulations in effect at the time of the effective date of this chapter or of any amendment thereto.

 

Section 2. That the Council finds and declares that before taking any action on the proposed amendment hereinabove, all public notices and hearings required by the Zoning Ordinance have been given and had.

 

_____________________________________________

 

I hereby certify that as required by Chapter 80, Code of Ordinances, the foregoing ordinance was duly advertised and public hearings were held.

 

 

___________________________________

Secretary, City Plan Commission

 

Approved as to form and legality:

 

 

___________________________________

M. Margaret Sheahan Moran

Assistant City Attorney